Anna Martignetti, Esq. v. Brookline, Town of - Police Department (SPR 20170016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Super-visor ofR ecords January 12, 2017 SPR17/016 Myles Murphy Deputy Superintendent Traffic & Records Commanding Officer Town of Brookline-Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Murphy: I have received the petition of Anna Martignetti, Esq., on behalf of her client, appealing the response of the Town of Brookline- Police Department (Department) to a request for public records. G. L. c. 66 §lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Martignetti requested copies of incident reports involving a particular address and specific dates. The Department denied t.~e request, claiming the responsive record is exempt from disclosure under G. L. c. 41, §97D as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any tov.TD of the Commonwealth, unless falling ·within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to vvithhold a requested record. G. L. c. 66, § 1 0( c); see also District Attornev for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(a); see also 950 C.M.R. 32.06(2) (where cost of complying vvitb a One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2&32• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Myles Murphy SPR17/016 Page 2 January 12, 2017 request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide 'Written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting a..rtd responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is·available on the Internet, free of charge, at htto://V~'VIrw.sec.state.ma.us/pre/prepd£i£Uide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff vvill visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Purpose of request In her petition Attorney Martignetti indicates her intent to obtain the requested records on behalf of her client Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, Attorney Martignetti's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.") In addition, the Supervisor of Records (Supervisor) may deny an appeal if the public records in question are the subject of disputes in active litigation, administrative hearings or mediation. 950 C.M.R. 32.08(2)(b ). As such, Attorney Martignetti may wish to consider another means of seeking to obtain any existing responsive records. The Department's response The Department claims the responsive records may be withheld under G. L. c. 41 , §97D as it operates through Exemption (a). Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Myles Murphy SPR17/016 Page 3 January 12, 2017 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A governmental entity may use the statutory exemption as a basis for v;rithholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attomev General v. Collector ofLvnn, 377 Mass. 151, 54 (1979); Ottaway Newspapers. Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality En2:ineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defmed in section 1 of chapter 209 A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality G. L. c. 41, §97D 'Whereas the responsive record consists of information related to the type of information specifically exempted by statute, I find that the Department acted properly in withholding the requested records from disclosure. Sincerely, tlbti$ f»UAAAA)r Rebecca S. Murray Supervisor of Records cc: Anna M. Martignetti, Esq.